27th July 1997

The 13th Amendment after a decade

By Kishali Pinto Jayawardena

Jubilation over the recent Kalutara consensus had scarcely subsided when a
mischievous question raised its head.......what exactly had been agreed to by
the 200 or so SLFP men and women over whose head the party whip had been
cracked? Aspects of the Devolution package discussed in fact omitted the most
crucial issues such as the unit of devolution (the North East merger) and
matters relating to land and police powers. A noted political science observer
present at the meeting had this to comment on the quality of the discussions "What
were discussed were the most basic points......the lack of awareness of the
real issues was appalling" Small wonder it is then that Trade Minister
Kingsley Wickremaratne was reportedly left confused at the end of it, asking as
to whether somebody could explain to him what this was all about.

The country shares the Trade Ministers confusion. A decade has passed
since the Indo Lanka Accord was signed leading to the Thirteenth Amendment.
Since then, much water and more blood has passed under the bridge. The
Thirteenth Amendment has been discredited with Justice Minister G.L.Peiris
calling it a "sham" in a memorial lecture recently. This led to
immediate anger on the part of some commentators who saw this as too harsh a
dismissal of something that they had risked their lives to defend in 1987.

But that the whole has been an experiment which has miserably failed has
long been evident. An absence of political will has been cited as the main
reason. Whole portions of the law relating to devolution of police and revenue
remain untouched up to date. Deposed Chief Minister of the North East Province
Varatharajaperumal outlined his frustration thus

" Even the meagre powers devolved by the Thirteenth Amendment have been
systematically denied to the province....some of the glaring features of the
Amendment are that Appendices to the Provincial List take away what is devolved
in the main text. The Concurrent List takes away powers devolved by the
Provincial List. The Sri Lankan Government treats the Concurrent List as its own
preserve like the Reserved List."

Thus if ,an epitaph for the Thirteenth Amendment is sought for, the most
appropriate could well be that bulldozing devolution without any real party or
national consensus, in the context of a continued demand for Eelam is bound to
fail.

In retrospect, have we learned any lessons here ? True, the devolution
package on offer is in theory a vast improvement over past proposals. But the
old, old arguments still remain, only the national landscape has become more
frightening.

"Experimental devolution based on communal lines has not worked. This
cannot be clearer now. We are only paving the way for more fragmentation,"
comments MEP chief Dinesh Gunewardene who points to the claims for a separate
Muslim devolved unit as one example.

Confusion is confounded by the fact that no one knows what exactly is on
offer. Though statements have ben made that 75% of the package has been
finalised, the fact remains that the 25% yet in flux is the most important. And
no guarantee exists as to the stability of what has in any case been announced,
as seen by the speed with which the Government is now withdrawing on its
proposal to decrease the number of parliamentarians. Meanwhile, an official
announcement recently of a startling new array of social and economic rights
was obviously some judicious arm twisting in order to drum up support for the
more controversial parts of the package.

The third draft is said to significantly modify the proposals put before the
country last year. It is understood that they contain specific provisions
relating to the implementation of the Executive Committee system at regional
level. The idea that a modified ExCo system ought to be transported to post
colonial times has had a surprising number of backers, ranging from SWRD
Bandaranaike and Dr. Colvin R. de Silva to MEPs Dinesh Gunewardene,
former UNP Minister Gamini Jayasuriya and the Organization of Professional
Associations in recent times. They have urged an implementation of the ExCo
system at national level.

Whether the present proposals will meet with any measure of approval is
however uncertain. The draft contemplates a mixture of the ExCo system,
proportional representation (PR) and central politicking in a manner that has
aroused the ire of those who had been in the forefront of advocating changes.

The proposals provide that there shall be a Board of Ministers with the
Chief Minister at the head in each Regional Council. The Ministers advise the
Governor who shall act on such advice, thus making the Governor a mere
figurehead comparable to the Governor General of olden times.

After the conclusion of an election, the Commissioner of Elections will
designate the number of Ministerial seats on the basis of PR.

The Commissioner then has to inform the General Secretaries of the political
parties of the number of Ministries allotted to them and the Secretaries should
inform the Commissioner within 48 hours as to who would be appointed as
Ministers. The decision therefore lies with the Centre, effectively undermining
any real devolution.

Meanwhile, the Council will elect members from themselves to form Executive
Committees for each Ministry. Members of the Committees may make policy
proposals to their Minister with regard to any subject under their purview.

All this is of course a far cry from the actual ExCo system in 1931 in which
the assemblies themselves formed into a number of committees and appointed a
single person as their head and responsible as the Minister. It was thus that
they were able to exercise some measure of influence over their Ministers.

Each of these Ministers came together to form the Board of Ministers
comprising also of the Chief Secretary, Legal Secretary and Financial Secretary
who were nominated by the Governor. In arguing for a similar system in modern
times, the thinking was that within the smallness of an executive committee,
party posturing would be lessened, and there would be more willingness to give
and take. Whether this argument will hold, in the presently proposed rather
unhappy mix of the old and the new is anybody guess.

But what about the cry that the need of the hour now is not a new package,
but rather an effective implementation of the Thirteenth Amendment itself ? The
EPDP has been vociferously advocating this particular panacea for some time
now.

Leader of the EPDP Douglas Devananda has been somewhat ingenious in making
use of a particular provision in the Thirteenth Amendment which allows the
amendment of the law upon approval of the Councils and a simple majority in
Parliament. Devananda argues that this should be made use of to amend the law
as to provide for necessary changes to the Thirteenth Amendment in order to
implement greater devolution. This might be a more realistic option than
pushing through devolution packages that are unlikely to see the light of day,
Devananda has said. Critics like Dinesh Gunewardene and Ven.. Sobitha Thero see
more merit in arguments to resuscitate the Thirteenth Amendment than a realistic
pushing forward of the PA devolution package.

"At least, this law is on our statute books. Perhaps this should be
first reformed and made to work properly before grander plans are put into
effect," said Ven Sobitha Thero.

Justice Minister G.L. Peiris has not been very favourable to this idea.

Debate and counter debate on devolution thus continues. At Kalutara, we saw
SLFP politicians committing spectacular hara kiri in bending themselves over
double to accommodate more extensive measures of devolution than what they once
hysterically opposed in 1987. Imagining the UNP in the same spirit of political
opportunism is not all that difficult, given the past. And ten years after the
Thirteenth Amendment, the kindest thing to say is that we are still trying.

with the present Devolution proposals

Then: Establishment of Provincial Councils in nine provinces with
the North and the East Councils being "temporarily" merged.Unitary
status of the Republic of Sri Lanka

remains unchanged.

Now: The "unitary" nature of the Constitution is
replaced with a kind of quasi federalism as the draft provides that the
Republic of Sri Lanka shall be an indissoluble Union of Regions.This provokes a
storm of protests when the proposals are released.

Then: In a situation of emergency,the President may by
proclamation assume to the Centre the administration of the Province,while the
powers of the Provincial Council can be taken over by Parliament.The President
has no power to dissolve a Council.An amendment act of 1990 provides that where
more than half of the members of a Council expressly repudiate or manifestly
disavow obedience to the Constitution,or when the Council ceases to
function,the Council shall stand dissolved.

Now: Article 26(a) of the draft proposals permit the President in
a situation where there is a clear and present danger to the unity and
sovereignity of the country,by proclamation to assume to herself/himself the
functions and powers of the Governor,the Board of Ministers or any other
authority.The President is also given the power to dissolve the Regional
Council in such a situation,though if such dissolution is to be in force for
more than 14 days it must be approved by Parliament.

Then: There is confusion as to whether the Governor is a nominal
leader acting on the advice of the Board of Ministers or whether he can
override his Ministers and act on orders of the President .l

Now: The Governor is clearly a figurehead, with powers comparable
to the Governor General of olden times

Then: Subjects devolved to the Provincial Councils are contained
in the Provincial Councils List(Police and public order,Planning,Education and
educational services,local government,Provincial housing and construction etc)
while subjects retained by the Centre are in the Reserved List.(National
Policy,Defence and National Security,Foreign Affairs etc)

Parliament is also given the power to make laws with regard to subjects
specified in the Concurrent List after such consultation with the Provincial
Councils as Parliament considers appropriate.The Concurrent List relates to
subjects such as Planning at provincial level,Higher Education,education and
educational services ,National Housing and Construction, Agriculture and
Agararian Services,Health etc)

Now: The Concurrent List is abolished,increasing the number of
subjects in which a Council will have sole authority to legislate.The Regional
Councils are also given greater revenue raising powers.

Then: Devolution of power with regard to the judiciary is not set
down in detail.

Now: The draft provides for the establishment of a regional
judiciary and a regional Attorney General.

* pre existing District Development Councils to be permitted to
combine into one or more Regional Councils

* Regional Councils would have legislative powers in respect of
subjects devolved to it.The devolved subjects to be worked out through
negotiations

* Chief Minister and his Council of Ministers to constitute the
executive arm,supported by a Regional Public Service

APC fails through inabilty of political parties to agree coupled with
increasing militarization of the ethnic conflict.

1985 TULF MPs are killed by militant groups.Terrorism brought to
Colombo with bombings of civilians

1986 LTTE liqudates TELO and then EPRLF.Talks held in Thimpu
Bhutan between the Sri Lankan Government,TULF and the militants under the
auspices of the Indian Government.Talks fail.

Ten years of Abortive Conflict Resolution (1987- 97)

1987 Sri Lanka Army get upper hand in Jaffna but Indian Government
intervenes on behalf of LTTE and other groups.India armtwists President
Jayawardene into signing the controversial Indo Lanka Accord.The Thirteenth
Amendment is passed in Parliament with the Supreme Court approving it by a razor
thin majority. Provincial Councils form merging north and east.India sends
troops to north and east of Sri Lanka causing violent demonstrations in the
south of the island.

1991 LTTE assasinate Indian Premier Rajiv Gandhi changing Indian
support to Indian anger for LTTE cause

1993 LTTE assasinate President Premadasa

1994 Opposition candidate Chandrika Kumaratunge promises peace
with the LTTE and partly due to this wins the elections.

1995 onwards - President Kumaratunge initiates peace
talks with LTTE.

Talks fail.War is renewed in the North and East.In August 1995 broad
principles of the PA Devolution package is put before the country,succeeded by
the first draft in 1996.

Continue to the News/Comment page 5 - * School heads warned of student demos, * Dont miss the chance: Downer, * Big packet if theres peace , * Pressing ahead with media reforms, * The UN in the age of identity, * American primacy is not a good thing